Annulment on the Ground of Non-Consummation in Philippine Law (A comprehensive guide for lawyers, judges, and laypersons alike)
1. Why “non-consummation” matters in a country without divorce
The Philippines recognizes no civil divorce (except for Muslim divorces and certain foreign divorces). When a couple breaks down, the legal exit doors are:
| Exit door | Statutory basis | Effect | Grounds relevant to sex |
|---|---|---|---|
| Declaration of nullity | Family Code arts. 35, 36, 37, 38 | Marriage void from the beginning | Psychological incapacity (art. 36) |
| Annulment (voidable marriage) | Family Code arts. 45–47 | Marriage valid until annulled; void only from final judgment | Incurable physical incapacity to consummate (art. 45 ¶ 5) |
“Non-consummation” therefore fits in two legal pigeonholes:
- Article 45 (5) – physical impotence (annulment, voidable marriage).
- Article 36 – psychological incapacity (declaration of nullity) when the refusal or inability to engage in intercourse is rooted in a grave, incurable psychological condition.
2. What counts as “consummation”?
Philippine statutes never define it, but constant jurisprudence* treats consummation as complete and normal sexual intercourse between the spouses, sufficient in itself for procreation. Mere attempts or partial penetration are not enough. Sterility does not void a marriage; the law targets impotence, i.e., the inability to perform the act, not the inability to beget children.
* See e.g. Republic v. Court of Appeals & Molina, G.R. 108763 (Feb 13 1997) for a working definition.
3. Article 45 (5): physical incapacity to consummate
| Element | What the court looks for |
|---|---|
| Existing at the time of marriage | The defect must pre-date or be contemporaneous with the wedding. |
| Physical, not merely psychological | Erectile dysfunction caused by anatomical defect, hormonal disorder, chronic illness, or traumatic injury; vaginismus due to congenital anomaly; etc. |
| Permanent or medically incurable | Expert evidence must show no realistic medical remedy. |
| Consistent | The incapacity must “continue” after the wedding; a single successful intercourse breaks the case. |
Who may sue & when
Injured spouse (only) may file the petition within five (5) years from the date of the marriage. (Family Code art. 47 ¶ 4).
If both spouses were mutually impotent, either one may sue. If the petitioner knew the condition before the wedding and still married, he or she is barred by estoppel.
4. Article 36: psychological incapacity leading to non-consummation
If the failure to consummate stems from a grave, deeply-rooted, incurable psychological disorder — e.g., pathological sexual aversion, paraphilic disorder rendering normal intercourse impossible — the petition falls under Article 36. Key differences:
| Art. 36 | Art. 45 (5) | |
|---|---|---|
| Nature of defect | Psychological | Physical |
| Type of case | Declaration of nullity (void ab initio) | Annulment (voidable) |
| Who may file | Either or both spouses and even the OSG | Injured spouse only |
| Prescription | None | 5-year period |
5. Evidentiary requirements
- Medical expert testimony – urologist, andrologist, gynecologist, or sex therapist to attest to the incurability and permanence.
- Psychological evaluation (Art 36 cases) – conducted by a qualified clinical psychologist or psychiatrist.
- Petitioner’s testimony – describe wedding night, subsequent attempts, partner’s reactions, and absence of consummation.
- Corroborative witness – often a sibling or close friend who observed the spouses’ living arrangement.
- Documentary proof – medical records, lab results, text messages hinting at avoidance, sworn statements of therapists, etc.
The Rules on Examination of a Victim-Survivor of Violence (A.M. No. 04-10-11-SC) do not apply; instead, ordinary rules of evidence and physician–patient privilege govern. A respondent’s refusal to submit to a court-ordered physical exam may be taken as indicia of impotence but is never conclusive.
6. Procedure at a glance
Venue – Regional Trial Court (Family Court) of the province or city where either spouse resided for the last six months before filing (A.M. No. 02-11-10-SC).
Verified petition – narrate facts, cite Article 45 (5) or Article 36, attach CERTIFIED-TRUE COPIES of the marriage certificate and birth certificates of children, if any.
Filing fees & raffling.
Notice to:
- Office of the Solicitor General (OSG)
- Provincial/City Prosecutor (PAO sometimes enters appearance for indigents)
Answer – 15 days for respondent. Default allowed but collusion investigation still mandatory.
Pre-trial – setting of issues, marking of exhibits, referral to mediation.
Trial – petitioner first; then experts; then respondent’s side; collusion investigation report by prosecutor.
Decision – must (a) recite facts, (b) expressly annul/declare void, and (c) order entry in the Civil Registry.
Notice of finality & Entry of Judgment – only then may parties remarry; registrar must annotate marriage certificate.
Average timeline in Metro Manila: 18 – 36 months; faster in less congested courts if uncontested. Delays arise from congested dockets, repeated resetting, or incomplete medical reports.
7. Effects of a favorable decree
| Aspect | Result |
|---|---|
| Children | Legitimate if conceived/born before final judgment (Family Code art. 45 last ¶). |
| Property regime | The absolute community or conjugal partnership dissolves; liquidation under arts. 50–51 (annulment) or art. 147 (void marriages). |
| Donations propter nuptias | Automatically revoked. |
| Succession rights | Spouses lose intestate-succession rights toward each other prospectively. |
| Surnames | Wife may revert to maiden name (Civil Code art. 370). |
| Bigamy | No bigamy case lies for a marriage contracted after the decree; prior bigamous marriage remains criminal. |
8. Common litigation pitfalls & practice tips
- Establish permanence – a single medical certificate stating “erectile dysfunction” is weak; link prognosis, duration, and incurability.
- Show attempts at consummation – courts dislike “paper” marriages where parties lived apart; describe concrete efforts.
- Avoid “DIY” psychological reports – follow Republic v. C.B.B., G.R. 212796 (Jan 25 2022), requiring rigorous methodology.
- Consider mediation for property/child issues – while grounds are non-negotiable, custodial and financial stipulations often settle.
- Beware of collusion – scripted testimonies trigger dismissal. Present authentic evidence of good-faith breakdown.
9. Representative jurisprudence
| Case | Gist |
|---|---|
| Ngo-Chu v. C.A. (G.R. 124479, Dec 17 1999) | Psychological aversion to sexual relations qualified as Art 36 incapacity; marriage declared void. |
| Vidal v. Vidal (G.R. 196903, Jan 27 2016) | Mere refusal to engage in sex, without expert proof of psychological root, insufficient. |
| Guevarra v. Eala (A.C. 7136, Aug 1 2006) | Lawyer suspended for filing frivolous impotence petition—cautionary tale on evidence. |
(Actual impotence cases reaching the Supreme Court are rare; most end at RTC level.)
10. Alternatives when non-consummation is not due to impotence
- Fraud – If a spouse concealed a severe sexual dysfunction or biological sex, it may fall under Art 45 (3).
- Marriage contracted through force or intimidation – Art 45 (4).
- Sexually transmissible disease – Art 45 (6) if the disease pre-dated the marriage and is serious/incurable.
- Legal separation – If marriage cannot be annulled (e.g., impotence arose after wedding), refusal of marital obligations can be “sexual infidelity or perversion” under Art 55 yet separation retains the marital bond.
11. Checklist for counsel or self-represented litigants
| ✔ | Task |
|---|---|
| ☐ | Confirm ground—Art 45 (5) vs Art 36. |
| ☐ | Secure medical diagnostics from a specialist. |
| ☐ | Draft verified petition with detailed narrative of wedding night, subsequent attempts, and ongoing incapacity. |
| ☐ | Line up corroborative and expert witnesses; subpoena duces tecum for medical records if hostile. |
| ☐ | File within the 5-year prescriptive period if proceeding under Art 45 (5). |
| ☐ | Prepare for collusion investigation; keep communications authentic. |
| ☐ | After decree, process entry of judgment and civil-registry annotation before contracting a new marriage. |
12. Conclusion
Non-consummation remains one of the narrowest doors out of a Philippine marriage. The law demands proof of either incurable physical impotence existing at the wedding (annulment) or grave psychological incapacity (nullity). Petitioners succeed only when they marshal medical expertise, credible testimony, and procedural rigor. When available, however, an annulment on this ground severs the marital tie cleanly while safeguarding the legitimacy of children and fairly partitioning property.
This article is for informational purposes only and is not a substitute for individualized legal advice. Consult a Philippine family-law practitioner for case-specific guidance.